The defense of entrapment is one of the most familiar defenses within criminal law. However, the ability of criminal defendants to successfully establish entrapment through proof at trial is uncommon. Although the defense of entrapment did not exist at common law, modern courts have easily embraced this defense. Legal scholars suggest that the entrapment defense has been widely accepted by the judiciary due to the common use of informants and undercover agents in law enforcement coupled with the increasing focus during the twentieth century on drug-related offenses and other crimes that are commonly described as ”victim-less,” such as offenses ranging from prostitution and pornography to gambling (Samaha 1999).
Entrapment is generally defined as the inducement of an individual by government agents to commit a crime that the defendant would not otherwise commit. Generally, the motivation to induce individuals to commit criminal behavior is the need to obtain a criminal conviction (21 Am. Jur. 2d., § 246). Thus, the defense of entrapment exists to prohibit law enforcement from inducing otherwise innocent persons to commit crimes for the purpose of securing a criminal conviction. However, entrapment does not occur when law enforcement officers simply provide an otherwise willing participant with an opportunity to engage in criminal behavior.
A review of the literature and appellate court decisions reveals several theoretical justifications for the entrapment defense (Colquitt 2004). Many courts have held that the defense exists to deter unethical or overzealous behavior of law enforcement agents, whereas others suggest that sound public policy requires a defense such as entrapment to protect law-abiding individuals from unscrupulous law enforcement tactics. Still others cite the lack of the element of mens rea in true entrapment situations as a sufficient justification for the defense. However, regardless of the basis for the entrapment defense it is currently allowed in all federal and state jurisdictions (21 Am. Jur. 2d., § 246).
Entrapment is considered an affirmative defense. Generally speaking, defendants who assert the entrapment defense must establish two critical elements: the lack of predisposition to commit the crime and inducement by government agents. The majority of American jurisdictions require the defendant to admit that the criminal acts occurred prior to proceeding with an entrapment defense. Thus, an admission by the defendant is a prerequisite to presenting evidence to establish the defense. While a defendant must admit his or her participation in the criminal acts, a guilty plea to the offense is not required.
Currently, two tests are used to determine whether the defendant has established the elements of entrapment. The first is a subjective test and is used in the majority of American jurisdictions and in the federal courts (Samaha 1999). The focus of this approach is the state of mind of the defendant. The defendant must establish that he or she was not predisposed to commit the crime, but rather was induced into doing so by the conduct ofgovernment agents. Thus, the defendant must prove that, absent the inducement by government agents, the defendant would not have participated in the criminal behavior. Courts have developed criteria to assist the jury with this determination. These include the following: the character or reputation of the defendant, including prior criminal convictions; whether the initial suggestion regarding criminal behavior was made by government agents or the defendant; whether the defendant engaged in criminal behavior for financial gain; whether the defendant displayed initial reluctance to participate in the suggested activity that was overcome by the actions of government agents; and last, the nature of the conduct of government agents alleged to constitute inducement (21 Am. Jur. 2d., § 263).
The second test used to establish the elements of entrapment is an objective test. The impetus for the use of the objective test is the deterrence of unethical law enforcement practices that serve to entrap otherwise innocent individuals. With this approach, the primary focus is on the nature of the police conduct as opposed to the predisposition of the defendant. Thus, the proper line of inquiry asks whether the conduct of law enforcement was sufficient to induce a reasonable law-abiding person to commit a crime.
Unlike the subjective test, the jury is not obligated to determine whether the conduct of law enforcement would have induced the particular individual on trial, but rather, whether the conduct would have induced a hypothetical person of reasonable intelligence (Colquitt 2004). As such, the predisposition of the defendant is not a central issue in jurisdictions that utilize the objective test, and juries are not instructed to consider the particular characteristics of the defendant, which would normally be relevant to determine predisposition.
In the most recent ruling by the U.S. Supreme Court on the issue of entrapment, the Court reversed a conviction of a Nebraska farmer for a violation of the Child Protection Act of 1984 due to the inability of the government to clearly establish the predisposition of the defendant. In Jacobson v. United States, 503 U.S. 540 (1992), the Supreme Court emphasized the distinction between merely offering or providing an individual with the opportunity to commit the crime with which he or she is charged and conduct by government agents which either due to its nature or frequency actually induces the individual to commit a crime he or she would not otherwise commit. In Jacobson, the Court concluded the prosecution failed to establish that the actions of the defendant were the result of an independent predisposition as opposed to the result of the twenty-six months of solicitations through the mail by government agents. The Court concluded that the evidence presented by the government “… merely indicates a generic inclination to act within a broad range, not all of which is criminal, [and] is of little probative value in establishing predisposition.” Other entrapment cases decided by the U.S. Supreme Court include Sorrells v. United States (1932), Sherman v. United States (1958), United States v. Russell (1973), and Hampton v. United States (1976).
An example of law enforcement tactics that have been condemned by many courts is the practice of ”supply and buy.” Supply and buy was once a common practice within the field of drug enforcement. In the typical supply and buy case, government agents or informants supply the drugs that the defendant is eventually encouraged to sell to undercover government agents. Once the ”sale” is complete, the defendant is arrested. Many courts have characterized the practice of supply and buy as official misconduct. However, in some jurisdictions, evidence that clearly establishes the predisposition of the defendant to engage in the criminal act will avoid acquittal. However, absent such clear proof of predisposition in supply and buy cases, entrapment is established and the defendant discharged. Other examples of police conduct that have been deemed unacceptable include cases involving ”extreme pleas of desperate illness, appeals based primarily on sympathy, pity or close personal friendship and offers of inordinate sums of money” (21 Am. Jur. 2d., § 267: 326).
Regardless of the test utilized by the courts, there is ongoing debate regarding the propriety of the entrapment defense within modern American jurisprudence. However, despite this debate, law enforcement officers must understand the essential elements of entrapment and continue to strive to maintain the delicate balance that exists between the use of proper law enforcement practices and those that may snare otherwise law-abiding citizens.
